Fouts appeals term limits case to U.S. Supreme Court

WARREN — Former Warren Mayor James Fouts filed an appeal with the U.S. Supreme Court in August to hear the case against the Warren City Council that denied him from being on the ballot and running for an unprecedented fifth term.

It all started in 2016 when Warren residents voted to extend the term limits of only the mayor from the greater of three four-year terms, or 12 years, to the greater of five four-year terms, or 20 years. However, in 2020, residents voted that the mayor should have the same term limits as the other elected officials, which then limited him again to three four-year terms.

In an ensuing lawsuit by Fouts, Macomb County Circuit Court Judge Joseph Toia ruled that the language on the 2020 ballot and in the city charter was “unclear and omitted language that stated previous years served would be counted.” As a result, Toia ruled Fouts could remain on the ballot.

The case then went to the Michigan Court of Appeals where three justices ruled unanimously to overturn Toia’s decision. The Court of Appeals concluded, “The charter language was not ambiguous, the words ‘terms served prior’ did not have to appear in the ballot proposal question section but was on the proposal section and a prospective application was applied from 2020, meaning after Fouts had completed his fourth term, having served more than the greater of three complete terms or 12 years he was not eligible to run for mayor.”

The Michigan Court of Appeals ordered Fouts to be removed from the primary election ballot on April 21, 2023. The Michigan Supreme Court and the United States Court of Appeals for the Sixth Circuit later upheld the ruling and opted not to hear the case.

Fouts argued he was warranted a fifth term since the language on the 2020 ballot was “unclear and omitted language.”

“We are hoping the Supreme Court looks at this and realizes there’s an injustice that happened when the Sixth Circuit United States Court of Appeals refused to change the direction of the federal district court in Detroit,” said Attorney Nabih Ayad, who is representing Fouts.

“So we’re hoping that the Supreme Court looks at this and sees this is an important issue for all dignitaries and government officials that run for office and see this has to be a level playing field when someone runs for office and not dictated by the politics of the community,” Ayad said.  “And that’s what we think happened here, the politics played a role, and they undermined the due process for Mayor Fouts and hampered his ability to run for office again for the last number of years he was entitled to.”

Ayad and Fouts are aware the likelihood of the Supreme Court hearing this case is slim, but they are optimistic that if it is heard by the court, their ruling will be favorable.

“I think if they (the Supreme Court) take it up, yes, I think that we have a very positive belief that the Supreme Court will rule in our favor,” Ayad said. “Our position has always been that the political forces of the City Council had diverted the will of the people. And I think that they have been duped into voting for something they did not truly understand what they were voting for.”

According to Ayad, it is a matter of retroactivity. Since the ballot did not state retroactivity or prior years served will be counted, voters did not know whether the three terms or 12 years started from that point forward or if it was a cumulative count of the years served.

“So we are hoping that the Supreme Court fixes that,” Ayad said. “They have fixed it for others in similar situations as Mayor Fouts.”

According to the former mayor, he is using his own money from his retirement savings to pay for this case.

Fouts, who recently lost his Democratic primary bid to incumbent state Rep. Mike McFall for a seat representing District 14 in the Michigan House of Representatives — which now encompasses Center Line, Hazel Park, Madison Heights and parts of Warren after redistricting — admits partisan politics is not for him. He has been a bipartisan politician for most of his career of more than 40 years.

According to Fouts, he did not receive any party support and used his own money to finance his campaign.

“I spent more on this campaign than my campaigns for mayor, which were all a success. Again, I had nobody in Lansing to help me out at all, either Republican or Democrat. So I was basically a third-party candidate running,” Fouts said. “You better already have the endorsement of the party leaders, particularly the speaker of the house. Otherwise, you can’t win.”

Fouts doubts if he will ever be on an election ballot again but would like to share what he has learned.

“In the event that a miracle would occur, and the U.S. Supreme Court would rule (in our favor), my attorney feels that if the U.S. Supreme Court does choose to hear it, then we will be successful, and then I would be on the ballot again,” Fouts said. “That is the only way my name will probably ever appear on the ballot again.”

Fouts said he stays active by exercising three times a day. He starts his morning with a jog or walk for about 45 minutes to an hour. Midday he works out on the elliptical machine and after dinner takes a walk for 40 to 45 minutes.

“So I have a lot of energy despite being up there in years,” Fouts said.

Fouts would like to continue working and has no plans for retirement.

“I’m not a retired type of person,” Fouts said. “I’m not sure I have any choice but to work creatively at doing things which would not involve retirement.”

Fouts is exploring different opportunities including doing a podcast, consulting other political candidates and writing a book.

“I think I have a lot to say about the courts. I’ve got a lot to say about elections. I’ve got a lot to say about city government and things of that nature. I think in my 40 years of service, 16 as mayor, and even in this campaign, I think I’ve got some things to say that would be of interest,” Fouts said. “It might be a little disconcerting for some, but in general I’d like to approach it as this is what I’ve learned that would make our government process a little more fair and (more) democratic.”